The delay in lodging the FIR is not always a circumstance on the basis of which the prosecution case may be said to be fabricated, and it all depends on the facts and circumstances of each case where the circumstance of delay may lead to serious consequences.

JUDGMENT :

Md. Mumtaz Khan, J.

1. Appellant has preferred this appeal assailing the judgment, order of conviction and sentence dated April 30, 2005 passed by the learned Additional Sessions Judge, 1st. Fast Track Court, Malda in Sessions Trial No. 4(5) of 2003 arising out of Sessions case No. 79 of 2003 thereby convicting the appellant for the commission of the offence punishable under Section 376 of the Indian Penal Code(hereinafter referred to as IPC) and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for six months more.

2. On June 20, 1991 P.W.1 lodged a written complaint (Ext.1) scribed by one Farid Ali before the officer in charge, English Bazar P.S., Malda alleging that on June 12, 1991 at about 4/5 PM when her minor daughter aged about 11 years went to fetch water from tap beside their house then at that time appellant forcibly took her away and raped her. Thereafter, local people got her daughter admitted to the Railway Hospital in bleeding condition. As he was away for some work he could not inform the incident to police in time.

3. On the basis of the above written compliant of P.W.1 English Bazar P.S. Case No. 176 dated June 20, 1991 was started by P.W.6 against the appellant under Section 376 IPC. P.W.9 initially investigated the case and thereafter investigation was taken up by P.W.5 who after completion of investigation submitted charge sheet against the appellant under Section 376 IPC.

4. On May 28, 2003 charge under Section 376 IPC was framed against the appellant and on his pleading not guilty to the charge, trial commenced.

5. Prosecution in order to prove its case examined 9 witnesses and also produced and proved the FIR, seizure list, rough sketch map with index, statement of the victim girl recorded under Section 164 Code of Criminal Procedure (hereinafter referred to as CrPC), medical report etc. and thereafter on completion of trial and after examination of the appellant under Section 313 CrPC learned trial judge passed the impugned judgment.

6. Mr. Moinak Bakshi, learned advocate appointed as amicus curiae by this court to represent the appellant submitted that the order of conviction and sentence passed against the appellant are not sustainable in law due to delay in lodging the FIR, discrepancy in between the statements made in the FIR by P.W.1 with P.W.2.,failure to produce the treatment sheet, bed head tickets etc. relating to treatment of the victim, failure to examine the victim girl and mystery surrounding her reported death, doubt with regard to the recording of the statement of the victim girl and non examination of the Magistrate. According to Mr. Bakshi prosecution has failed to prove the charge against the appellant beyond shadow of doubt.

7. Ms. Sinha, learned advocate appearing for the state supported the conviction and sentence passed against the appellant and submitted that victim initially did not disclose the incident to any one and she was initially taken to the hospital on the very date of incident and was released on 15th June, 1991 but she was again taken to the hospital on 19th and that non examination of the victim girl at first during her stay in the hospital is laches on the part of the investigating officer for which prosecution case will not suffer. She further submitted that any contradiction or embellishment in the evidence of father and mother of the victim cannot make the prosecution case doubtful in the light of the medical report which corroborated the prosecution case. Ms. Sinha relating on the decision of Karnel Singh Vs. State of MP reported in 1995 C Cr LR (SC) 340 with regard to the defective investigation, the State of Maharashtra, Vs. Priya Sharan Maharaj & Ors. reported in 1997 C Cr LR (SC) 111 in which matter of not reporting the incident by the victim at the earliest and Satpal Singh Vs. State of Haryana reported in (2010)3 C Cr LR (SC) 45 with regard to the delay in lodging the f